Swanson v. City of La Fayette

• Decision Date: 18 April 1893
• Citation: 33 N.E. 1033,134 Ind. 625
• Parties: SWANSON v. CITY OF LA FAYETTE.
• Court: Indiana Supreme Court

134 Ind. 625

33 N.E. 1033

SWANSON

v.CITY OF LA FAYETTE.¹

Supreme Court of Indiana.

April 18, 1893.

Appeal from circuit court, Tippecanoe county; B. W. Langden, Judge.

Action by John Swanson against the city of La Fayette. A demurrer to the complaint was sustained. Plaintiff appeals. Affirmed.

T. A. Stuart and John R. Coffroth, for appellant. John F. McHugh, for appellee.

COFFEY, C. J.

This was an action commenced in the Tippecanoe circuit court by the appellant against the appellee for the recovery of damages on account of a personal injury. The complaint consists of two paragraphs. So much of the first paragraph as is material to the legal question involved in the case alleges, substantially, that on the 23d day of July, 1888, the appellee was engaged in hauling sand and gravel, by means of horses and wagons, from a gravel pit; that the pit had theretofore been worked, and a large quantity of sand and gravel removed therefrom, by the appellee, so that an embankment on the east side existed, which was of the height and depth of 14 feet from top to bottom; that the embankment was nearly perpendicular, and had on the top thereof a large quantity of earth; that the embankment was composed of sand and gravel, with earth on its top, which was liable to fall in large quantities, and overwhelm any person who might be in said pit, and was very dangerous to any laborer employed therein in removing sand and gravel, all of which facts appellee knew, or by the exercise of reasonable diligence might have known; that, on the day above named, the appellee employed the appellant as a common laborer to work in the pit, to assist in the removal of sand and gravel therefrom, and set him to work at the foot of the embankment to shovel sand and gravel into the wagons; that at the time, and for several months prior thereto, the appellee had in its employment one Thomas Keefe, whose duty it was to set its laborers to work, and to superintend them in the gravel pit, and to give them warning of any immediate or threatened danger; that Keefe set the appellant to work in the gravel pit, and soon thereafter absented himself, leaving no person in his place to warn the appellant of any threatened or immediate danger while at work; that the appellant was ignorant of the dangerous character of the work, and of the dangerous character and condition of the embankment, of its liability to fall and crush him while engaged at work, and, relying on Keefe to give him warning...